3. A plea of no contest does not admit the allegations of the charge but merely says the
defendant does not choose to defend.

4. Under the facts of this case, the defendant neither stipulated to the presence of a child
under the age of 14 in his vehicle, nor did he consent to the court finding such a fact.
Because the fact of the child's presence in the vehicle was not proved to a jury beyond a
reasonable doubt, the defendant's constitutional rights as recognized in Apprendi v. New
Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and State v.
Gould, 271
Kan. 394, 23 P.3d 801 (2001), were violated when the trial court used that fact to increase
the maximum 1-year sentence for a third driving while under the influence under K.S.A.
2006 Supp. 8-1567(f) by 30 days (1 month) in accordance with K.S.A. 2006 Supp. 8-1567(h).

5. Although unconstitutional as applied under the facts of this case, K.S.A. 2006 Supp.
8-1567(h) is not held to be facially unconstitutional. A statute is unconstitutional on its face
only if no set of circumstances under which the statute would be valid, applying United
States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987).

6. The fact that there may be evidence in the record to support the necessary findings
required by K.S.A. 2006 Supp. 22-4513 is inadequate. The statute and State v.
Robinson,
281 Kan. 538, 132 P.3d 934 (2006), are applied.

7. A criminal sentence is effective upon pronouncement from the bench; it does not derive
its effectiveness from the journal entry. A journal entry that imposes a sentence at
variance with that pronounced from the bench is erroneous and must be corrected to
reflect the actual sentence imposed, applying Abasolo v. State, 284 Kan. ___, Syl.
¶ 3,
160 P.3d 471 (2007).

ELLIOTT, J.: Mearl E. Whillock, II, appeals from the sentence imposed following his no
contest plea to a third felony charge of driving under the influence (DUI). We reverse in part,
vacate the sentence, and remand with directions.

Responding to a report of an intoxicated person leaving the Oskaloosa Thiftway in a
silver Dodge pickup, a sheriff's officer saw Whillock driving a silver pickup out of the parking
lot. Detective Kirk Vernon placed his patrol car in front of Whillock's truck and activated his
emergency lights.

Vernon approached the truck and asked Whillock if he had been drinking; Vernon saw a
half-empty bottle of raspberry vodka between Whillock's leg and the truck's console. Vernon also
observed a 6-year-old child in the truck.

Whillock failed a preliminary breath test and was transported to the sheriff's office where
he failed field sobriety tests and consented to a breath test. Whillock's breath alcohol content was
.368. Whillock was charged as follows: Count I–felony third DUI; Count
II–endangering a child;
and Count III–transporting an open container of alcohol.

Pursuant to a plea agreement which is not in the record on appeal, Whillock pled no
contest to a third felony DUI. There was some confusion at sentencing. The trial court sentenced
Whillock to 1 year in county jail for the DUI, plus 30 days because of the presence of the minor.

The State noted the additional 30 days came from the requirement of K.S.A. 2006 Supp.
8-1567(h) that Whillock serve a mandatory 30 days in addition to whatever sentence was
imposed for the third felony DUI due to the child's presence. Accordingly, the State announced it
was dismissing Counts II and III.

After the trial court pronounced a finding of guilt on Counts I and II, the State again
clarified Counts II and III were dismissed due to the effect of 8-1567(h). The trial court never
acknowledged on the record the conviction would only involve Count I.

On appeal, Whillock claims the additional 30-day sentence enhancement imposed
violates his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 147 L.
Ed. 2d 435,
120 S. Ct. 2348 (2000), and State v. Gould, 271 Kan. 394, 413, 23 P.3d 801 (2003),
because the
fact a child under the age of 14 was in his truck was used to enhance the sentence beyond the
statutory maximum but was not proved to a jury beyond a reasonable doubt.

Whillock acknowledges he did not raise the Apprendi issue below, but we
will address
the challenge, as our Supreme Court has previously done in Gould, 271 Kan. at
404-05, and State
v. Conley, 270 Kan. 18, 30-31, 11 P.3d 1147 (2000), cert. denied 532 U.S.
932 (2001).

The present case appears to be the first time our appellate court has been asked to
consider the 1-month sentence enhancement provision of K.S.A. 2006 Supp. 8-1567(h). Our
review of statutory interpretation is unlimited. State v. Bryan, 281 Kan. 157, 159,
130 P.3d 85
(2006).

The federal Constitution requires that any fact that increases the penalty for a crime
beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable
doubt. Apprendi, 530 U.S. at 490. Facts that fall under the Apprendi
factfinding requirement
include all "facts essential to punishment." Cunningham v. California, ___ U.S. ___,
166 L. Ed.
2d 856, 874, 127 S. Ct. 856 (2007); see Gould, 271 Kan. at 410.

K.S.A. 2006 Supp. 8-1567(f) provides that the sentencing range for the third DUI to
which Whillock pled no contest is from a minimum of 90 days to a maximum of 1 year of
imprisonment. The trial court imposed the maximum sentence of 1 year. And because K.S.A.
2006 Supp. 8-1567(h) mandates any "person convicted of violating this section . . . who had a
child under the age of 14 years in the vehicle at the time of the offense shall have such person's
punishment enhanced by 1 month of imprisonment [which] must be served consecutively to any
other penalty imposed," the trial court imposed an additional sentence of 30 days' imprisonment.
The trial court could not decide whether to impose 30 days or a month and decided to "call it 30
days."

The sentencing journal entry reflects a sentence of 13 months' imprisonment. Thus, it
appears there is no legitimate dispute that the fact a child under age 14 was in Whillock's vehicle
when he committed the DUI offense, and this fact increased the penalty for his third DUI beyond
the prescribed statutory maximum sentence.

The question, then, becomes whether the increased sentence runs afoul of the
constitutional protections found in Apprendi and Gould.

The State argues that Apprendi is not violated because, by his plea, Whillock
admitted the
presence of the minor child in his vehicle at the time he committed the DUI offense. We
disagree. In State v. Kneil, 272 Kan. 567, 571, 35 P.3d 797 (2001), our Supreme
Court declined
the State's invitation to rule that by pleading guilty, the defendant admitted to aggravating
sentencing factors; see State v. Cullen, 275 Kan. 56, 61-62, 60 P.3d 933 (2003);
State v. Cody,
272 Kan. 564, 565, 35 P.3d 800 (2001).

"[N]othing prevents a defendant from waiving his Apprendi rights. When a
defendant pleads
guilty, the State is free to seek judicial sentence enhancements so long as the defendant either
stipulates to the relevant facts or consents to judicial factfinding. [Citations omitted.] If
appropriate waivers are procured, States may continue to offer judicial factfinding as a matter of
course to all defendants who plead guilty. Even a defendant who stands trial may consent to
judicial factfinding as to sentence enhancements, which may well be in his interest if relevant
evidence would prejudice him at trial. We do not understand how Apprendi can
possibly work to
the detriment of those who are free, if they think its costs outweigh its benefits, to render it
inapplicable."

In the present case, we emphasize Whillock pled no contest; he did not plead guilty. A
plea of no contest "does not admit the allegations of the charge, but merely says that defendant
does not choose to defend." Federal Deposit Ins. Corp. v. Cloonan, 165 Kan. 68, 91,
193 P.2d
656 (1948). Whillock neither stipulated to the presence of a child under the age of 14 in his
vehicle, nor did he consent to the court finding such a fact.

Because the fact of the child's presence in the vehicle was not proved to a jury beyond a
reasonable doubt, Whillock's constitutional rights as recognized in Apprendi and
Gould were
violated when the trial court used that fact to increase the maximum 1-year sentence for a third
DUI under K.S.A. 2006 Supp. 8-1567(f) by 30 days (1 month) in accordance with K.S.A. 2006
Supp. 8-1567(h). Accordingly, Whillock's sentence must be vacated and the case remanded for
resentencing.

Although unconstitutional as applied to Whillock under the facts of this case, we are not
ruling K.S.A. 2006 Supp. 8-1567(h) to be facially unconstitutional. A statute is unconstitutional
on its face only if "no set of circumstances exists under which the [statute] would be valid."
United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 107 S. Ct. 2095
(1987).

Whillock next argues the trial court erred in ordering him to reimburse Board of
Indigents' Defense Services (BIDS) for his attorney fees because it failed to consider his ability to
pay, the financial burden that payment would impose, and the validity of the fees.

The trial court ordered Whillock to pay court-appointed attorney fees, but it made no
findings during sentencing regarding Whillock's ability to pay the fees or the financial burden
that payment would impose.

The fact that there may be evidence in the record to support the necessary findings
required by K.S.A. 2006 Supp. 22-4513 is inadequate. In State v. Robinson, 281
Kan. 538, 546,
132 P.3d 934 (2006), the court concluded that "the sentencing court, at the time of initial
assessment, must consider the financial resources of the defendant and the nature of the burden
that payment will impose explicitly, stating on the record how those factors have
been weighed in
the court's decision."

Because the trial court did not explicitly consider any of the factors listed in K.S.A. 2006
Supp. 22-4513 in ordering Whillock to pay court-appointed attorney fees, that order is vacated
and remanded to consider the issue in accordance with the teachings of Robinson.

Whillock also argues the trial court erred in assessing the $100 BIDS application fee in
the journal entry of sentencing when the fee was not mentioned at sentencing. The sentencing
transcript confirms the trial court did not pronounce as part of Whillock's sentence an order that
he pay the BIDS application fee.

Our Supreme Court recently reiterated the longstanding rule that a "criminal sentence is
effective upon pronouncement from the bench; it does not derive its effectiveness from the
journal entry. A journal entry that imposes a sentence at variance with that pronounced from the
bench is erroneous and must be corrected to reflect the actual sentence imposed." Abasolo
v.
State, 284 Kan. ___, Syl. ¶ 3, 160 P.3d 471 (2007).

In the present case, the record on appeal, which appears representative of the routine in
most BIDS cases, does not indicate Whillock was ever ordered or otherwise directed to pay the
BIDS application fee to the clerk of the court, either at the time he applied for court-appointed
counsel or up to the time of sentencing. Instead, the BIDS application fee appeared for the first
time in the journal entry of sentencing. This is improper.

The sentencing journal entry is nothing more than a "record of the sentence imposed."
Abasolo, 284 Kan. at ___ (slip op. at 8). The order with respect to the BIDS
application fee is
reversed.

The enhanced sentence for the third felony DUI is vacated and remanded for
resentencing; the BIDS attorney fee order is vacated and remanded for resentencing in
accordance with Robinson; the BIDS application fee order is reversed.